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HomeMy WebLinkAboutWest Orange County Water Board (WOCWB) - 2017-11-20Dept. ID PW 17-059 Page 1 of 4 Meeting Date° 11/20/2017 CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTION MEETING DATE: 11/20/2017 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Travis K. Hopkins, PE, Director of Public Works SUBJECT: Approve and authorize execution of a Financial Participation Agreement with the West Orange County Water Board (WOCWB) for the Relocation of the OC-35 Water Transmission Main; appropriate funds; and, approve the amended WOCWB Fiscal Year 2017-18 budoet to include associated r)roiect costs Statement of Issue: The Orange County Transit Authority (OCTA) will vote at their regular Board Meeting on November 27, 2017, to approve a low interest variable rate ten (10) year loan of up to $6,000,000 to the West Orange County Water Board (WOCWB) to help finance the relocation of the 33-inch OC-35 water transmission main made necessary by the 1-405 widening project. The Financial Participation Agreement obligates each WOCWB member agency to repay their respective share of the loan agreement to WOCWB. Financial Impact: The City's share of the OCTA loan is estimated to be $3,510,873, depending on final construction costs and future interest rates. The City's share of the loan for the FY 2017-18 WOCWB budget, including the reserve requirement, is estimated to be $398,554, to be appropriated from the Water Master Plan Fund (507) undesignated, unreserved fund balance and expended from account 50785201.67655. Recommended Action: A) Approve and authorize the Mayor and City Clerk to execute "Financial Participation Agreement — City of Huntington Beach Facilities Relocation Costs (405 Freeway Facilities Relocation" with the WOCWB; and, B) Appropriate funds in the amount of $398,554 from the Water Master Plan Undesignated Unreserved Fund Balance for the First Year Loan Repayment and Reserve Requirement to account 50785201.67655; and, C) Approve the amended WOCWB Fiscal Year 2017-18 budget to include the OC-35 Water Transmission Main Relocation Project costs and related debt service and reserve requirements and authorize the City Manager, City Clerk, and Chief Financial Officer to take all administrative and budgetary actions necessary to perform the financing and completion of the project, contingent upon approval of the budget amendment by the WOCWB. Alternative Action(s): Do not approve the Financial Participation Agreement with WOCWB and the amended budget and direct staff accordingly. Item 12. - 1 HB -126- Dept. ID Pw 17-059 Page 2 of 4 Meeting Date; 11/20/2017 Analysis: The WOCWB is a Joint Powers Authority comprised of the Cities of Garden Grove, Seal Beach, Westminster, and Huntington Beach. The WOCWB owns and operates the OC-9 and OC-35 water transmission mains that extend from the Metropolitan Water District of Southern California transmission main in the City of Stanton, in a southerly direction through the member cities terminating in the City of Huntington Beach on Newland Street and Springdale Street. Water purchased from the Municipal Water District of Orange County is transported through the pipelines to numerous member agency connections providing treated imported water when required. Huntington Beach owns 56.1 percent of the system. The WOCWB is governed by five elected officials from each of the Joint Powers agencies. Council Member Jill Hardy and Mayor Pro Tern Mike Posey represent the City of Huntington Beach on the Board. The City of Huntington Beach serves as the General Manager, operations and engineering staff, and financial agent for the Board. During the utility investigation phase of the 1-405 Freeway Widening Project, OCTA identified the WOCWB's 33-inch OC-35 pipeline that crosses beneath the freeway and is parallel to, and on the south side of the Westminster Blvd. bridge. This pipeline was constructed in 1963, during the early phases of the construction of the freeway. In order to protect the pipeline and allow for access and removal in case of pipeline failure, many sections of the pipeline were encased in a 45-inch pipeline (casing) wherever it crossed beneath the freeway or any of the freeway's onramps and offramps. OCTA notified the WOCWB staff with information on the proposed bridge improvements and informed staff that the WOCWB would have to prove to OCTA and Caltrans that the WOCWB pipeline has occupancy rights dating back to 1952 (65 years ago), when the freeway alignment was approved by the State of California. If WOCWB could not prove that the 33-inch line had "prior rights", any costs related to protecting, relocating or abandoning the line would have to be paid for by the WOCWB. According to Caltrans statute, it is up to the agency being impacted to prove occupancy rights. Public Works staff from the cities of Huntington Beach and Westminster searched for any documents that would address the occupancy issue, finding an encroachment permit but no easement. Therefore, the WOCWB pipeline has no occupancy rights and all costs relating to relocating the pipeline would be the responsibility of the WOCWB. Extensive review of the bridge widening plans and the as -constructed plans for the 33-inch pipeline led to the conclusion that the 53 year old pipeline should be relocated. A number of alternative locations were evaluated and a consulting engineering firm with extensive pipeline and Caltrans experience was utilized to review the work and develop relocation cost estimates for the most favorable alternates. The WOCWB Board approved the findings of the engineering evaluation and approved the recommendation to relocate the underground pipeline crossing of the 1-405 Freeway approximately 400 feet to the south (see attached). The new alignment will require the installation of approximately 2,400 feet of new 33-inch cement mortar lined and coated steel pipe. The 280 feet of the 33-inch line that will be under the freeway will be protected within a 45-inch steel casing pipe that will be installed utilizing micro -tunneling techniques. No surface construction will occur within the freeway right-of-way, On October 31, 2017, the bid opening was held, with the lowest bid coming in at $5,129,705 for construction costs. OCTA adds 12% for project management, inspection and material testing costs plus a 10% contingency, which brings the total estimated project cost to $6,258,240. The City of Garden Grove will be paying their $262,846 share (4.2%) up front and not participating in the loan. HB -127- Item 12. - 2 Dept. ID PW 17-059 Page 3 of 4 Meeting Date: 11/20/2017 The entire project is located Within the City of Westminster. Businesses and residents Will be impacted during the construction of the pipeline (and the freeway improvements). Their Public Works staff has been extremely helpful and supportive throughout the project attending meetings, providing infrastructure information, performing plan review and other activities. WOCWB has an annual budget of $91,000 for fiscal year 2017/18 and typically budgets $150,000 for annual maintenance, operating, utilities, legal and insurance costs. The Board has a reserve of $400,000. If each member agency were to pay the entire cost of the project without financing, some agencies might need to raise rates in order to meet their obligations. Therefore, the Board has negotiated a reimbursement agreement with OCTA to finance construction of the project, as well as two related agreements. OCTA UTILITY AGREEMENT In order to qualify for the construction loan, OCTA requested that the WOCWB sign a Utility Agreement (UA), attached. WOCWB counsel has reviewed the UA and found no major issues. The City of Huntington Beach City Attorney's Office and members of the Board's counsels were also given the opportunity to review and comment on the UA. The Utility Agreement was approved by the Board at the October 18, 2017, regular meeting. OCTA REIMBURSEMENT AGREEMENT (LOAN) Following numerous discussions with OCTA staff concerning the terms of the loan, OCTA staff prepared Reimbursement Agreement No. U-2017-151087, attached. The OCTA loan would include the following terms: • The term would be for a period not to exceed 10 years • Interest would be charged at the rate of earnings equal to the State of California Surplus Money Investment Fund (SMIF) which stands at 1.069% • The variable interest rate is adjusted quarterly • Payments would be made on a quarterly basis • There is no prepayment penalty • The loan may include the construction, project management, inspection and material testing costs plus a 10% contingency The OCTA loan can only be made available to the WOCWB. Individual cities are not eligible to obtain a project loan on their own. An initial Reimbursement Agreement for $4.7 million was approved by the WOCWB at the October 18, 2017 regular meeting. Following the October 31, 2017, bid opening, the WOCWB submitted a request to OCTA to amend the Reimbursement Agreement by up to $1.3 million, for a total of up to $6 million for the realignment project. The WOCWB will consider the amendment for the additional $1.3 million at a special meeting in December 2017. The following table shows the breakdown of the estimated loan amount. TABLE 1: WOCWB Loan from OCTA for the Relocation of the OC-35 Water Transmission Main Total Project Cost $ 6,258,240 WOCWB Member City Fiscal Responsibility Project Cost To Each City Garden Grove* 4.2% $ 262,846 Item 12. - 3 HB _ 1 2 8- Dept. ID PW 17-059 Page 4 of 4 Meeting [date: 11/20/2017 Huntington Beach 56.1 % $ 3,510,873 Seal Beach _ 14.3% $ 894,928 Westminster 25.4% $ 1,589,593 Total $ 6,258,240 *The City of Garden Grove will be paying their share in full prior to the beginning construction, but will sign the agreement so that they are obligated to pay their portion of any unforeseen contingencies. WOCWB Financial Participation Agreement This agreement will also be considered for approval at a WOCWB special meeting in December. The Financial Participation Agreement is between an individual member agency and the Board. It obligates each member agency to pay their allotted share of the project costs and provides safeguards for the Board should an agency be unable to pay their entire amount. As this is a low interest loan — currently 1.069% -- staff believes financing this project will allow the City to pay for this project in a timely manner without needing to reprioritize other water infrastructure projects, Should interest rates rise, there is no prepayment penalty and the City could pay off its obligations before accruing substantial interest costs. Funds for this agreement were not included in the Fiscal Year 2017/18 approved budget as the agreement and funding should be approved in concert with each other. WOCWB Fiscal Year 2017-18 Budget The City of Huntington Beach serves as the fiscal agent for the WOCWB. As such, any amendments to the approved WOCWB must also be approved by the City in order for the City's Finance Department to be able to process those payments. The budget amendment authorizes spending up to $6,258,240 on project costs, and $512,260 for debt service. Likewise, the amended budget recognizes the receipt of up to a $5,995,394 loan from OCTA and up to $943,444 in payments from the member agencies for the loan reserve requirements, payments for three fiscal year quarters, as well as the entire share of the City of Garden Grove's portion of the project costs. Environmental Status: Not Applicable Public Works Commission Action: Not Applicable Strategic Plan Goal: Enhance and maintain infrastructure Attachment(s): 1. Financial Participation Agreement between the City of Huntington Beach and WOCWB 2. Amended Fiscal Year 2017/18 Budget 3. Drawing of OC-33 Relocation Project 4. Reimbursement Agreement between WOCWB and OCTA 5. Utility Agreement between WOCWB and OCTA HB -129- Item l 2. - 4 ATTACHMENT #1 FINANCIAL PARTICIPATION AGREEMENT — CITY OF HUNTINGTON BEACH FACILITIES RELOCATION COSTS (405 Freeway Facilities Relocation) This FINANCIAL PARTICIPATION AGREEMENT — City of Huntington Beach FACILITIES RELOCATION COSTS ("Agreement") is made and entered into and effective as of thisA'�day of 0V&M4 , 2017, by and between the WEST ORANGE COUNTY WATER BOARD, a joint powers agency (hereinafter referred to as "WOCWB") and the CITY OF HUNTINGTON BEACH, a California charter city, organized and existing pursuant to the Constitution and laws of the State of California (hereinafter referred to as "City", each agency to this Agreement may in certain cases be referred to herein as a "Party" and collectively, herein as the "Parties"). RECITALS 1. Pursuant to the WOCWB Joint Powers Agreement (as defined herein), October 25, 1967, WOCWB and its Member Agencies (as defined in the Joint Powers Agreement) own, operate and maintain certain potable water transmission and distribution lines all located within the boundaries of the County of Orange ("County"), State of California ("State"). 2. Certain WOCWB facilities extending over and across the Interstate 405 Freeway ("I-405") are located within, and subject to, various encroachment permits and related documents currently managed by the Orange County Transportation Authority ("OCTA") and are further described herein as the "Relocation Facilities". 3. OCTA, by and through a cooperative agreement with the California Department of Transportation, is constructing improvements on Interstate 405 (1-405) Freeway between State Route 73 (SR-73) and Interstate 605 (1-605). The improvements include one general purpose lane in each direction from Euclid Street to I-605, and an additional lane in each direction that would combine with the existing high -occupancy vehicle lane to provide dual express lanes in each direction of I-405 from SR-73 to I-605 ("405 Project"). 4. As a result of the construction for the 405 Project, it is necessary for WOCWB to relocate its existing thirty-three (33) inch waterline located in Westminster Boulevard where it crosses Interstate 405 from east of Willow Lane to Springdale Street (the "Relocation Project") in conflict with the 405 Project. 5. In accordance with 405 Project requirements, Utility Agreement No. UK 151087 ("UK 151087") has been entered into between OCTA and WOCWB. UK 151087 specifies the facilities relocation work to be performed, performance of work responsibility, and that the cost liability of such relocation based on existing rights of the respective Member Agencies in the facilities to be relocated (all as set out in Exhibit "A"). Under the terms of UK 151087, one- hundred (100) percent cost responsibility for the relocation work is assigned to WOCWB including, but not limited to, all services, final design and construction cost (hereafter, the "WOCWB Relocation Work"). UK 151087 also allows for the advancement of funds for the relocation work by OCTA upon determination of a hardship in accordance with Section 706 of the Streets and Highways Code. 6. WOCWB has entered into the OCTA Reimbursement Agreement (as defined herein) with OCTA to provide a portion of the funding necessary to provide for the WOCWB Relocation Work on the Relocated Facilities. 7. In order to provide adequate funds for WOCWB to repay the Financial Participation Payments which will come due under the OCTA Reimbursement Agreement, WOCWB is entering into this Agreement with City to provide for Financial Participation Payments to be made to WOCWB by City upon the terms and conditions set forth herein. ARTICLE I INTENTION; DEFINITIONS; ACTIONS BY WOCWB CONTRACT MANAGER 1.1 Intention. It is the intention of the Parties to provide for Financial Participation Payments to be made by City to WOCWB to allow WOCWB to make the OCTA Contract Payments, as specified in the OCTA Reimbursement Agreement in a timely manner. City acknowledges that WOCWB does not have financial reserves sufficient to pay the OCTA Contract Payments due from City and other involved Member Agencies of WOCWB. 1.2 Definitions. In addition to the definitions heretofore included in the Recitals, and unless the context otherwise requires, the following terms shall have the following meanings: "Allocated Ownership" means the allocated ownership, and corresponding cost responsibility, for the Relocated Facilities as set out in Exhibit "A" attached hereto and incorporated herein by this reference. In the case of City the allocated ownership is 56.1 %. "CHB" means the City of Huntington Beach, acting in its capacity as the Contract Manager for WOCWB. "City" means City of Huntington Beach, a California charter city, organized and operating pursuant to the provisions of the California Constitution and State law. "Contract Manager" means CHB when operating or acting in its capacity as Contract Manager for WOCWB. "Default Rate" means an interest rate equal to the variable State Surplus Money Investment Fund (SMIF) interest rate, which may be adjusted on a periodic basis. "Due Date(s)" means the date(s) set out in Exhibit "C". 2 "Event of Default" means an Event of Default as set forth in Section 4.1 of this Agreement. "Financial Participation Payments" means those certain payments made by City to WOCWB, through CHB, pursuant to the provisions of Article III of this Agreement. "General Manager" means the duly appointed and acting General Manager of WOCWB. "Letter(s) of Credit" means that certain irrevocable, standby letter(s) of credit issued or provided pursuant to Section 3.6 hereof by a Letter of Credit Bank(s), or any reissuance or extension thereof, which Letter(s) of Credit shall be in the applicable Stated Amount and shall be for an initial term of no less than one year. "Letter of Credit Bank(s)" means the issuer from time to time of a Letter(s) of Credit and the respective successors and assigns of the issuer thereof and any surviving, resulting or transferee banking association or corporation with which, or into which, it may be consolidated or merged or to which it may transfer all of its banking business, provided that such entity shall have a minimum rating, at all times during the term of the Letter(s) of Credit, of one of the following: (1) Moody's long-term rating of "A" and short-term rating of "P-1"; or, (2) S&P long- term rating of "A" and short-term rating of "A-1"; or, (3) Fitch long-term rating of "A+" and short-term rating of "F 1"; with any of the foregoing ratings to be evidenced by proof provided by the Letter of Credit Bank(s) to the Contract Manager in writing. "Member Agencies" means the Member Agencies of WOCWB as set forth in the WOCWB Joint Powers Agreement. "OCTA Reimbursement Agreement" means that certain Reimbursement Agreement No. U- 017-151087 between the Orange County Transportation Authority and WOCWB dated as of 6 i*)7f ' , 2017. "Relocation Facilities" means those facilities of WOCWB which are required to be removed, abandoned and/or relocated as a result of the 405 .Project which Relocation Facilities are described in Exhibit `B," attached hereto and incorporated herein by this reference. "Reserve Fund" means the fund or account (regardless of actual designation) established and maintained by the Contract Manager pursuant to the provisions and requirements of Section 3.4 hereof. The Reserve Fund shall be discreet for each Member Agency using a unique object account for payment tracking. "Reserve Requirement" means an amount equal to the average of one periodic Reimbursement Payment, as scheduled in Exhibit "C." "State" means the State of California. 3 "WOCWB" means West Orange County Water Board, a joint powers agency organized pursuant to the provisions of the WOCWB Joint Powers Agreement. "WOCWB Joint Powers Agreement" means that certain Joint Powers Agreement, dated as of October 25, 1967, as subsequently amended, and as such may be further amended or supplemented in the future from time to time. 1.3 Interpretation. (a) Unless the context otherwise indicates, words expressed in the singular shall include the plural, and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to mean and include the neuter, masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof. (c) All references herein to "Articles," "Sections" and other subdivisions are to be corresponding Articles or subdivisions of this Agreement; the words "herein," "hereof," "hereby," "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision thereof. 1.4 Actions of WOCWB's Contract Manager. Pursuant to an existing agreement WOCWB has retained CHB to act as its Contract Manager for all operational and financial purposes. For purposes of this Agreement references to WOCWB shall include the Contract Manager. All actions to be undertaken by WOCWB shall, unless otherwise expressly stated herein, be undertaken or performed on behalf of WOCWB by the Contract Manager. The Contract Manager acts through the General Manager. 1.5 WOCWB Actions to Complete Relocation of Relocation Facilities. Through the Contract Manager and pursuant to the requirements of OCTA and the terms of the OCTA Reimbursement Agreement, WOCWB shall undertake to contract for, and complete, the relocation of the Relocation Facilities. WOCWB shall provide the Member Agencies with periodic updates on the progress and status of such relocation work. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1 Representations by WOCWB. WOCWB makes the following representations: (a) WOCWB is a joint powers agency duly organized and existing under and pursuant to the laws of the State. 11 (b) WOCWB has full legal right, power and authority to enter into this Agreement and carry out its obligations hereunder, to carry out and consummate all other transactions contemplated by this Agreement, and WOCWB has complied with the provisions of applicable State law in all matters relating to such transactions. (c) By proper action, WOCWB has duly authorized the execution, delivery and due performance of this Agreement. 2.2 Representations by City. City makes the following representations: (a) City is a charter city duly organized and existing under and pursuant to the laws of the State. (b) City has full legal right, power and authority to enter into this Agreement and carry out its obligations hereunder, to carry out and consummate all other transactions contemplated by this Agreement, and City has complied with the provisions of applicable State law in all matters relating to such transactions. (c) By proper action, City has duly authorized the execution, delivery and due performance of this Agreement. ARTICLE III PAYMENT OF FINANCIAL PARTICIPATION PAYMENTS TO WOCWB 3.1 Payments of Financial Participation Payments. (a) City shall pay to WOCWB the Financial Participation Payments allocated to City based upon City's Allocated Ownership/financial responsibility portion of the Relocation Facilities based upon the payment schedules set forth in Exhibit "C," attached hereto and incorporated herein by this reference, as such may be revised pursuant to Section 3.3. Subject to Section 3.2, each such Financial Participation Payment shall be made by City to WOCWB not later than the corresponding Due Date as shown in Exhibit "C." (b) Unless otherwise agreed to by and between City and the Contract Manager, such Financial Participation Payments shall be made by wire transfer consistent with the wire instructions to be provided by WOCWB. In the event of a change in such wire directions, the Contract Manager shall inform City of such change in writing. (c) Each Financial Participation Payment shall be paid to WOCWB in lawful money of the United States of America. In the event that City fails to make any of the payments required to be made by it under this Section, such payment shall continue as an obligation of City until such amount shall have been fully paid and City agrees to pay the same with interest accruing thereon at the Default Rate from and after the applicable Due Date for payment. 5 (d) City shall have the option to prepay all or a portion of its total allocated Financial Participation Payment at any time.. Any such prepayments shall be made and applied as set out in Section 3.2 hereof. (e) The obligation of City to make the Financial Participation Payments is absolute and unconditional and until such time as all Financial Participation Payments shall have been paid in full (or provisions for the payment thereof shall have otherwise been made by mutual agreement of the Parties) City will not discontinue or suspend any of the Financial Participation Payments required to be made by it under this Section when due. The obligation to make Financial Participation Payments as set forth in this Section shall not be conditioned on the performance or non-performance by any Party of any agreement, delays resulting in the completion of the work on the Relocation Facilities by WOCWB or by any other cause whatsoever; unless the obligation to make Financial Participation Payments is otherwise discharged by mutual agreement of the Parties in the event of changed circumstances. 3.2 Initial Deposits as Allainst Financial Participation Payments; Application of Deposit(s); Reconciliation. (a) City in lieu of periodic Financial Participation Payments may choose to make one or more deposits with CHB as the Financial Agent and Treasurer of WOCWB which deposit(s) shall be used as a credit against Financial Participation Payments as such shall become due. (b) CHB shall establish and, through a federally insured banking institution maintain, a separate fund or account for receipt of such City deposits (hereinafter referred to as the "Deposit Account" regardless of actual designation). The Deposit Account shall be used to receive deposits from City for payment or prepayment of its allocated Financial Participation Payments pursuant to the terms of this Agreement. Funds held in the Deposit Account shall be expended by CHB, on behalf of WOCWB, subject to the terms of this Agreement for payment or prepayment of City's Financial Participation Payments coming due thereafter under the terms of this Agreement. (c) CHB shall provide City with periodic statements concerning the amount of funds held in the Deposit Account and charges made to the Deposit Account for payment or prepayment of Financial Participation Payments pursuant to the terms hereof on a monthly basis. Records of all deposits and charges against the Deposit Account shall be maintained at CHB's business offices and open for review by City (or its agents) during normal business hours should City wish to review such. (d) Following the completion of the design, construction, installation and expiration of the notice of completion period for the Relocation Facilities CHB, as the financial agent and treasurer of WOCWB, shall provide City with a final accounting of all of the total project costs as allocated to City pursuant to the terms hereof. In the event that funds remain in the Deposit Account which have not been, and are not required to be, expended pursuant to the terms of this Agreement, such funds shall be returned to City by check, or other payment means acceptable to CHB and City within thirty (30) business days following completion of the above -referenced accounting report. In the event that final accounting shows a balance due to WOCWB from City 2 and there are no funds remaining in the Deposit Account to cover such, City shall provide final payment to CHB as Treasurer of WOCWB for the City allocated costs within thirty (30) business days of such final accounting. 3.3 Adjustment of Financial Participation Payments. The schedule of allocated Financial Participation Payments set forth in Exhibit "C" to this Agreement shall be subject to modification or amendment (i) as a result of change orders resulting from WOCWB's construction contract for the completion of the work on the Relocation Facilities and/or (ii) as a result of changes in interest rates as imposed pursuant to the terms of UK 151087. In the event of such change order(s) being approved pursuant to the WOCWB Relocation Facilities contract documents, WOCWB, through its Contract Manager, shall provide to City a modified schedule of allocated Financial Participation Payments which shall supersede Exhibit "C" upon the finalization thereof and provision to City pursuant to the provisions of Article IV, hereof. 3.4 Application of Financial Participation Payments. WOCWB, through CHB, agrees to retain all Financial Participation Payments made by City pursuant to the provision of this Agreement and apply such to the payment of construction contract costs resulting from the OCTA Reimbursement Agreement, subject to the provisions of Sections 3.2 and 3.3, hereof. 3.5 Reserve Fund and Reserve Fund Deposit. (a) As additional security for the payment of the Reimbursement Payments, CHB, as the Contract Manager shall open and maintain a Reserve Fund (regardless of actual designation). The Reserve Fund shall be utilized solely for the retention and application of Reserve Fund deposits and usage as set forth in this Section 3.5. (b) Not later than January 1, 2018, City shall deposit with the Contract Manager an amount equal to the Reserve Requirement for deposit into the Reserve Fund. (c) Moneys in the Reserve Fund shall be used solely for the purpose of satisfying payments of the Reimbursement Payments to the extent that they are not made by City in a timely manner. In the event that the payment of a Reimbursement Payment is not made by City by the corresponding Due Date, the Contract Manager shall withdraw from the Reserve Fund for satisfaction of the Reimbursement Payment. The Contract Manager will, promptly thereafter, notify City in writing of the amount needed to replenish the Reserve Fund to the Reserve Requirement. City shall replenish the Reserve Fund to the Reserve Requirement within thirty (30) Business Days following such notice. Failure to replenish the Reserve Fund to the Reserve Requirement as set forth above shall constitute an event of default for purposes of Section 4.1 hereof. (d) Draws upon the moneys in the Reserve Fund shall not preclude a Party from pursuing other applicable remedies under the provisions of Article IV hereof. (e) Moneys in the Reserve Fund shall be invested by the Contract Manager in investments authorized in the City of Huntington Beach's investment policy and the local agency investment guidelines issued by the California Debt and Investment Advisory Commission 7 ("CDIAC"). The Contract Manager shall provide City with periodic statements of the balance held in the Reserve Fund. Any moneys in the Reserve Fund in excess of the Reserve Requirement shall be: (i) returned to City upon written request therefore (which request(s) shall be no more often that once per quarter); or (ii) applied to City's next occurring Reimbursement Payment, as City shall direct in writing. (f) Upon completion of the payment of all Reimbursement Payments by City, and satisfaction of all contractual obligations of City, all moneys then held in the Reserve Fund, if any, shall be returned to City. Alternatively, monies held in the Reserve Fund, if any, may be applied to the final Reimbursement Payment due from the City. (g) The Contract Manager may establish additional accounts of the Reserve Fund as the Contract Manager shall deem necessary and prudent in furtherance of its duties pursuant to this Agreement upon written notification to City. 3.6 Satisfaction of Reserve Requirement by Way of a Letter of Credit. (a) In lieu of a cash deposit to the Reserve Fund as set out in Section 3.5, City may deposit with the Contract Manager one or more Letters of Credit in an amount equal to all or a portion of the Reserve Requirement. (b) The form of such Letter of Credit shall be provided by WOCWB general legal counsel not later than January 1, 2018. (c) Any such Letter of Credit shall be used to satisfy any draws on the Reserve Fund in the same manner as set out in Section 3.5(c), above. (d) The Contract Manager shall notify City, in writing, promptly following the draw(s) on any Letter of Credit then on deposit in the Reserve Fund, which notification shall include the amount(s) drawn on such Letter of Credit. (e) Any such Letter of Credit shall be renewed, replaced or replaced with a cash deposit, in the amount of the Reserve Requirement, not later than 15 days prior to the expiration of the then -current Letter of Credit. Failure to comply with this subsection shall constitute an event of default for purposes of Section 4.1 hereof. (f) In the event any Letter of Credit Bank(s) wrongfully refuses to honor any drawing made on any Letter(s) of Credit, WOCWB, through the Contract Manager may immediately bring an action and pursue any remedy available at law or in equity for the purpose of compelling the corresponding Letter of Credit Bank(s) to honor such drawing and to enforce the provisions of the corresponding Letter(s) of Credit. In such event, the Contract Manager shall promptly notify City, in writing, of such event. (g) Upon completion of the payment of all Reimbursement Payments by City, and satisfaction of all contractual obligations of City, all Letter(s) of Credit then held in the Reserve Fund, if any, shall be returned to City. ARTICLE IV EVENT OF DEFAULT — REMEDIES 4.1 Events of Default Defined. The following shall be "events of default" under this Agreement and the terms "events of default" and "default" shall mean, whenever they are used in this Agreement, any one or more of the following events: (a) An event of default by the City shall have occurred under Section 3.1 hereof. (b) Failure by the WOCWB or City to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Agreement, other than such failure as may constitute an event of default under clause (a) of this Section, for a period of 30 days after written notice specifying such failure and requesting that it be remedied has been given to WOCWB, or City, as applicable; provided, however, that if the failure stated in the notice cannot be corrected within such period, then the applicable Party shall not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the defaulting Party within such period and diligently pursued until the default is corrected. 4.2 Remedies on Default. (a) In the event of a breach of this Agreement, all legal and equitable remedies may be employed to enforce the terms herein, subject to the terms hereof. (b) WOCWB, through its Contract Manager, take any appropriate action to cause City to pay any Financial Participation Payment not paid when due. (c) Notwithstanding the provisions of Section 4.2(a) and (b), it is the intent of the parties to try and resolve any differences arising from this Agreement through mediation prior to the initiation of litigation. In the event of any disagreement over the meaning or application of this Agreement, the parties shall first attempt to resolve the matter informally. Should that prove unsuccessful, any party may ask for mediation. A neutral mediator from the State Mediation and Conciliation Service or the Judicial Arbitration and Mediation Service ("JAMS") shall be appointed to hear each side in an informal setting, and to render an advisory recommendation. Any such mediation costs shall be equally shared by the parties. 4.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to WOCWB is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement, or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle WOCWB to exercise any remedy reserved to it, it shall not be necessary to give any notice other than such notice as may be required in this Article or by law. 9 4.4 No Additional Waiver Implied by One Waiver. In the event any provision contained in this Agreement should be breached by a Party and thereafter waived by another Party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 4.5 Application of Funds. All moneys received by WOCWB pursuant to any right given or action taken under the provisions of this Article IV shall be deposited into the Reimbursement Fund and shall be applied by WOCWB in the following order: First, Costs and Expenses: to the payment of the fees, costs and expenses of WOCWB in pursuing such event(s) of default including reasonable compensation to its agents, attorneys and counsel; and Second, Payments Due Under OCTA Agreement: to the payment of payments due under the terms of the OCTA Agreement including any penalties, interest or costs due thereunder as a result of such event(s) of default. ARTICLE V GENERAL PROVISIONS 5.1 Record Keeping. WOCWB shall keep records and accounts of Financial Participation Payments, and other amounts due hereunder, collected and paid by City. Such records shall be maintained by WOCWB, through its Contract Manager, and shall be available for inspection by the Parties hereto upon reasonable prior notice. 5.2 Interpretation. WOCWB and City represent that they have read this Agreement and that they are fully aware of its contents and of its legal effect. The Parties have jointly cooperated in the drafting and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed in favor or against either WOCWB or City. The terms and provisions of this Agreement shall be construed in accordance with the laws of the State. 5.3 Entire Agreement. This Agreement constitutes a single, integrated written contract which contains the sole and entire agreement and understanding of WOCWB and City with respect to the subject matter of the reimbursements set forth herein (subject to the terms of the Settlement Agreement), and contains all covenants and agreements between the WOCWB and City with respect to such matter. No covenants, agreements, representations, or warranties of any kind whatsoever, whether express or implied in fact, have been made by any party to this Agreement, except as specifically set forth in this Agreement. All prior and contemporaneous discussions, negotiations and agreements as to such matters have been and are merged and integrated into, and are expressly superseded by, this Agreement. 5.4 Successor Is Deemed Included in All References to Predecessor. Whenever in this Agreement either the WOCWB or City is named or referred to, such reference shall be 10 deemed to include the successors or assigns thereof, and all the covenants and agreements in this Agreement contained by or on behalf of the WOCWB or City shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. 5.5 Assignment. This Agreement, and the rights and obligations hereof, shall not be assigned without the prior written consent of the other Party hereto. 5.6 Severability of Invalid Provisions. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Agreement and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The WOCWB hereby declares that it would have entered into this Agreement and each and every other Section, subsection, paragraph, sentence, clause or phrase hereof irrespective of the fact that any one or more Sections, subsections, paragraphs, sentences, clauses or phrases of this Agreement may be held illegal, invalid or unenforceable. 5.7 Amendments. No modification, amendment or waiver of any of the provisions contained in this Agreement, or any future representations, promise, or condition in connection with the subject matter of this Agreement shall be binding upon any party to this Agreement unless made in writing and signed by such party or by a duly authorized officer or agent of such party. 5.8 Waiver. The failure of any party hereto to insist on compliance within any of the terms, covenants or conditions of this Agreement by any other party hereto, shall not be deemed a waiver of such terms, covenants or conditions of this Agreement by such other party, nor shall any waiver constitute a relinquishment of any other right or power for all or any other times. 5.9 Waiver of Personal Liability. No member, officer, agent or employee of WOCWB or City shall be individually or personally liable for any payment(s) due hereunder or be subject to any personal liability or accountability by reason of the execution and delivery thereof, but nothing herein contained shall relieve any such officer, agent or employee from the performance of any official duty provided by law or by this Agreement. 5.10 Cooperation and Execution of Documents. The parties hereto agree to complete and execute any further or additional documents which may be necessary to complete or further the terms of this Agreement. 5.11 California Law. This Agreement shall be construed and governed in accordance with the laws of the State of California, applicable to contracts made and performed in the State. 5.12 Exhibits. The following exhibits attached hereto are incorporated into this Agreement by reference. 11 Exhibit Description "A" Description of Allocated Ownership/Financial Responsibility for Relocated Facilities "B" Description of Relocation Facilities "C" Schedule of Allocated Financial Participation Payments 5.13 Notices. Any notice, demand request, consent, approval or communication that any party desires or is required to give to any other party hereunder shall be in writing, postage prepaid and addressed to each other party at the following addresses or at such other address as may have been specified by notifying the other parties of the change of address: To WOCWB: WOCWB Attention: General Manager 2000 Main Street Huntington Beach, CA 92648 To City: 5.14 Execution in Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. [Remainder of this page intentionally blank] 12 BAW/199459 19007 M 21 IN WITNESS WHEREOF, the Parties to this Agreement have executed this Agreement by their duly Authorized Officers as of the date first set forth above. WEST ORANGE COUNTY WATER BOARD Jill Hardy print name By: General Manager or CITY OF HUNTINGTON BEACH, a municipal corporation of the State of ATTEST: "altlo-4� ,4,9S, 'CI Clerk APPROVED AS TO FORM: City Attorney INITIATED AND APPROVED: Director of tublic Works AND APPROVED - Signature Page - EXHIBIT "A" DESCRIPTION OF ALLOCATED OWNERSHIP/FINANCIAL RESPONSIBILITY FOR RELOCATED FACILITIES WEST ORANGE COUNTY WATER BOARD I-405 FREEWAY PIPELINE RELOCATION PROJECT ALLOCATION OF ESTIMATED COSTS BY AGENCY AGENCY PERCENT OWNERSHIP ESTIMATED COSTS Huntington Beach 56.1 $3,510,873 Garden Grove 4.2 $262,846 Seal Beach 14.3 $894,928 Westminster 25.4 $1,589,593 Totals 100 $6,258,240 Note: The estimated costs listed above are subject to changes upon the receipt of the final contract bid and as set forth in Section 3.3 herein. IW EXHIBIT "B" DESCRIPTION OF RELOCATION FACILITIES The Orange County Transportation Authority's I-405 Freeway Widening Project requires the WOCWB to relocate approximately 2,400 feet of its 33-inch OC-35 transmission pipeline where it traverses beneath the freeway immediately to the south of the Westminster Boulevard bridge between the intersections of Willow Lane and Westminster Blvd. and the intersection of Springdale Street and Westminster Blvd. The new pipeline will extend south from Westminster Boulevard along Willow Lane to the cul- de-sac at the end of Willow Lane on the northeast side of the I-405 Freeway. The pipeline will then cross beneath the freeway in a steel casing pipe to the intersection of Willow Lane and Mahogany Avenue on the southwest side of the freeway. From that point the pipe will then extend to the intersection of Mahogany Avenue and Springdale Street where it will connect to the OC-35 pipeline. EXHIBIT "C" SCHEDULE OF ALLOCATED FINANCIAL PARTICIPATION PAYMENTS Payment Number Payment Due Date 1 March 1, 2018 2 June 1, 2018 3 September 1, 2018 4 December 1, 2018 5 March 1, 2019 6 June 1, 2019 7 September 1, 2019 8 December 1, 2019 9 March 1, 2020 10 June 1, 2020 11 September 1, 2020 12 December 1, 2020 13 March 1, 2021 14 June 1, 2021 15 September 1, 2021 16 December 1, 2021 17 March 1, 2022 18 June 1, 2022 19 September 1, 2022 20 December 1, 2022 21 March 1, 2023 22 June 1, 2023 23 September 1, 2023 24 December 1, 2023 25 March 1, 2024 26 June 1, 2024 27 September 1, 2024 28 December 1, 2024 29 March 1, 2025 30 June 1, 2025 31 September 1, 2025 32 December 1, 2025 33 March 1, 2026 34 June 1, 2026 35 September 1, 2026 36 December 1, 2026 37 March 1, 2027 38 June 1, 2027 39 September 1, 2027 40 December 1, 2027 C-1 Notes: 1.) The proposed quarterly Payment schedule assumes a loan date of December 15, 2017. This quarterly payment schedule shall be adjusted based on the actual date of loan, however payment shall be provided no later than the first day of the month for each quarter for the preceding payment period. 2.) For each quarterly payment, quarterly loan Interest, quarterly loan principal, and any late fees for previous billing shall be included for the anticipated 40 payment (10 year) loan. 3.) The proposed quarterly Payment schedule will be updated with the quarterly Payment amounts when the contract bid has been finalized and accepted by the WOCWB and OCTA. 4.) The proposed quarterly Payment schedule and Payment amounts are subject to changes as set forth in Section 3.3 herein. C-2 ATTACHMENT #2 WEST ORANGE COUNTY WATER BOARD Draft AMENDED FISCAL YEAR 2017-18 BUDGET Account Description OPERATING EXPENSES 50885101.61200 Electricity 50885101.64620 Contracts for Repairs and Maintenance 50885101.69345 Auditing 50885101.69375 Attorney Fees 50885101.69365 Other Contract Services 50885101.69365 1405 Widening Facilities Relocation - Design 50885101.73010 General/Liability Insurance 50885101.75400 Board Stipend Expense 50885101.79100 Contingency OPERATING EXPENSES CAPITAL EXPENDITURES 50885102.82100 OC-35 Relocation NON OPERATING EXPENDITURES 50885102.88010 Debt Service TOTAL Expenditures October 26, 2017 FY 16-17 FY 17-18 FY 17-18 Approved Adopted Amended $4, 500 $4, 500 $4, 500 $30,000 $60,000 $60,000 $5,000 $5,000 $5,000 $5,000 $5,000 $5,000 $2,000 $2,000 $2,000 $235,000 $0 $0 $9,500 $9,500 $9,500 $2,500 $2,500 $2,500 $0 $2,500 $2,500 $293,500 $91,000 $91,000 $0 $0 $6,258,240 $512,260 $293,500 $91,000 $6,861,500 AMENDED FISCAL YEAR 2017-18 BUDGET Draft ALLOCATION OF COSTS BY AGENCY Adopted Budaet AGENCY Ownership Percentage Proposed 17/18 Costs 50800508.46610 Huntington Beach 56.1 $51,051 50800508.46620 Garden Grove 4.2 $3,822 50800508.46630 Seal Beach 14.3 $13,013 50800508.46640 Westminster 25.4 $23,114 Totals 100.0 $91,000 First Year Loan Pavment and Reserve 50800508.46610 Huntington Beach 56.1 $398,554 50800508.46620 Garden Grove* 4.2 $262,847 50800508.46630 Seal Beach 14.3 $101,592 50800508.46640 Westminster 25.4 $180,451 100.0 $943,444 *Garden Grove is paying their 4.2% of the project cost up front and has no reserve payment due Total Amended Budget 50800508.46610 Huntington Beach 56.1 $449,605 50800508.46620 Garden Grove* 4.2 $266,669 50800508.46630 Seal Beach 14.3 $114,605 50800508.46640 Westminster 25.4 $203,565 50800508.46450 OCTA Loan subtotal $1,034,444 $5,995,394 Total Amended Budget $7,029,838 Item 12. - 23 oc'HB-148-)17 ATTACHMENT #3 CC 1523 West Orange County Water Board Relocation of OC-35 Y I T N G P 0 RT K-'N ---------- - �-F FEEDE�:', NO, 2 7C' M: "'D SEE S -I HET 7 .... . ... .. ...... LOCATION MAP HB -149- Item 12. - 24 ATTACHMENT #4 REIMBURSEMENT AGREEMENT NO. U-2017-151087 BETWEEN THE ORANGE COUNTY TRANSPORTATION AUTHORITY AND WEST ORANGE COUNTY WATER BOARD THIS REI)TURSEMENT AGREEMENT ("Agreement") is made and entered into and effective this / 8 —day of CatoLer , 2017, by and between West Orange County Water Board, a Joint Powers Authority (hereinafter referred to as "WOCWB"), whose mailing address is 19001 Huntington Street. Huntington Beach California, 92648 and the Orange County Transportation Authority (hereinafter referred to as "OCTA") whose mailing address is 550 South Main Street / P. O. Box 14184, Orange, CA 92863-1584. I. BACKGROUND: A. OCTA, by and through a cooperative agreement with the California Department of Transportation, is constructing improvements on Interstate 405 (1-405) between State Route 73 (SR-73) and Interstate 605 (I-605). The improvements include one general purpose lane in each direction from Euclid Street to I-605, and an additional lane it) each direction that would combine with the existing high -occupancy vehicle lane to provide dual express lanes in each direction of I- 405 from SR-73 to I-605 (Project). B. As a result of the construction for the Project, it is necessary for WOCWB to relocate its existing thirty-three (33) inch waterline located in Westminster Boulevard where it crosses Interstate 405 from east of Willow Lane to Springdale Street in conflict with Project. C. In accordance with Project requirements, Utility Agreement No. UK 151087 ("UA 151087") has been entered into between OCTA and WOCWB (Exhibit A). UA 151087 specifies the relocation work to be performed, performance of work responsibility, and that the cost liability of relocation responsibility based on existing property rights. Under the terms of UA 151087, one - hundred (100) percent cost responsibility for the relocation work is assigned to WOCWB including, but not. limited to, all services, final design, property acquisition costs and construction cost (hereafter, the "Relocation Work"). UA 151087 also allows for the advancement of funds for the relocation work by OCTA upon determination of a hardship in accordance with Section 706 of the Streets and Highways Code, D. Whereas the WOCWB has formally requested an advancement of funds and by entering into this Agreement, OCTA finds that a hardship exists and that funds in the amount estimated at $4,700,000 shall be advanced to WOCWB conditioned upon WOCWB's agreement to repay such funds in accordance with this Agreement. II. AGREEMENT In consideration of the promises and mutual covenants herein contained, WOCWB and OCTA hereby agree as follows: A. WOCWB will perform the necessary relocation work in accordance with UA 151087 subject to the reimbursement terms and provisions of this Agreement. Item 12. - 25 IAB -150- REIMBURSEMENT AGREEMENT NO. U-2017-151087 BETWEEN THE ORANGE COUNTY TRANSPORTATION AUTHORITY AND WEST ORANGE COUNTY WATER BOARD B. Funds advanced under this Agreement shall be exclusively used by WOCWB for the Relocation Work in the amount not to exceed the amount. set forth in Exhibit B, Proposed Project Loan. A reconciliation of the actual bid price shall be performed upon receipt of bids by WOCWB for the relocation and shall provide the basis for the actual loan amount. An amount not to exceed 22 percent shall be applied to the bid price for project management, engineering, inspection, soils and materials testing and construction contingency. Should the bid price exceed the not to exceed amount in Exhibit. B, a cost analysis of bid shall be submitted by WOCWB to OCTA for review to address the bid amount, Should WOCWD desire an advance of funds in excess of the not to exceed amount, it rriust submit a written request for an amendment to this Agreement which is subject. to OCTA Board Approval. If OCTA identifies any bid anomalies it may request that WOCWB reject all bids and re -bid and re -procure the Relocation Work. C. Pursuant to Section 706 of the Streets and Highways Code, OCTA agrees, upon the terms and conditions contained in this Agreement, to loan funds for a period not to exceed 10 (ten) years from the date of deposit of funds into a WOCWB account for the Relocation Work. D. Interest for the loan shall be charged to WOCWB at the rate of earnings equal to the State of California Surplus Money Investment Fund (SMIF) and shall be accrued daily based on this rate. OCTA shall inform the WOCWB when the rate of earnings changes. E. OCTA shall furnish a cashier's check representing 100% (one hundred percent) of the loan proceeds within 30 (thirty) days of receipt of acceptable invoice from WOCWB. Such an invoice shall include this Agreement number, signature by an authorized agent, proof of actual expenses bid for the Relocation Work by a WOCWB contractor, and a reconciliation of the actual bid identified in Section B above. F. A loan repayment plan shall be developed between parties which includes standard quarterly payments identified in Exhibit C, Proposed Quarterly Payment Schedule, to establish a 10 (ten) year re -payment structure. Prior to the end of each calendar year during the loan repayment period, a reconciliation of payments and interest due may be performed by OCTA based on interest rates updates made to the SMIF and requested adjustments shall be incorporated within the loan repayment plan to maintain conformance with the SMIF. G. WOCWB shall submit to OCTA repayment for the loan based on a 10 (ten) -year duration including interest accrued daily. This payment shall be made by the 1st of month in which it is due and shall be paid on a quarterly basis of each calendar year. The first payment is due no later than the 1st of the month that is no longer than 90 (ninety) days from the date of WOCWB's receipt of the funds. Any payments which are late by more than five days shall accrue a one-time penalty of 5% (five percent) of the amount that is due. Such penalty shall be paid within 30 (thirty) days of receipt by WOCWB of a written notice from OCTA that the penalty is being imposed. Interest shall accrue on the penalty amount at the same rate as the principal amount if the penalty is not paid within the 30 (thirty) -day period. H. Any advanced funds which are in excess of WOCWB's actual expenditures at the time in which WOCWB accepts the Relocation Work as complete, shall be returned to OCTA no later than 90 (ninety) days from the date WOCWB accepts the Relocation Work. Funds not returned within this 90 (nitiety)-day period shall be treated in the same manner as a late payment. under HB -151- Item 12. - 26 REIMBURSEMENT AGREEMENT NO. U-2017-151087 BETWEEN THE ORANGE COUNTY TRANSPORTATION AUTHORITY AND WEST ORANGE COUNTY WATER BOARD Section 7 above. WOCWB shall provide OCTA with an accounting of all funds expended on the Relocation Work in a manner- which is reasonably acceptable to OCTA. WOCWB shall keep all records relating to the loan and the Relocation Work for a period of at least 7 (seven) years from acceptance of the Relocation Work. OCTA shall be permitted access to such records during WOCWB's normal business hours and be able to audit such records. I. Advanced payment or early pay-off of the loan is acceptable and no penalty shall be applied. WOCWB shall be responsible for interest of outstanding funds to the date of final payment. A cost accounting of interest due will be performed at final payment. Advanced payment(s) must be addressed in the reconciliation of payments and interest due as described in Section 6 above. J. By entering into this Agreement, WOCWB represents that it has the present and future ability to repay the funds advanced under the terms and conditions set forth in this Agreement and that it will take any and all actions required, including, if necessary and lawful, raising rates, fees or charges to those served by WOCWB and/or raising contributions from its member agencies, to pay off the loan in a timely manner. K. In the event that WOCWB identifies other funds to pay for the Relocation Work, including enacted State Legislation or from other sources, either in whole or part, OCTA agrees to reasonably cooperate with WOCWB to identify and secure such funds and to the extent such funds are made available to pay for the Relocation Work. To the extent such funds are made available, WOCWB shall, within 90 (ninety) days of receipt of such funds, remit to OCTA an equivalent amount from the funds advanced under this Agreement. L. If either party breaches any of the terms, covenants or provisions of this Agreement, and either party commences litigation to enforce any provisions of this Agreement arising out of such a breach, the prevailing party shall be entitled to all reasonable legal costs incurred in filing such litigation, including court costs, expert costs, attorney's fees and any other reasonably incurred legal expenses. M. No Board member of OCTA or WOCWB, no official, agent, or employee of OCTA and no official, agent, employee or member city of WOCWB shall be personally liable to the other parties, or any successor in interest, in the event of any default or breach by OCTA or WOCWB, or for any amount which may become due to OCTA or WOCWB, or successor, or on any obligations under the terms of this Agreement N. To the fullest extent permitted by law, OCTA and WOCWB agree to save, indemnify, defend, and hold harmless each other (and their respective officers, directors, agents, employees, member cities, and agents) from any and all liability, claims, suits, actions, arbitration proceedings, administrative proceedings, and regulatory proceedings, losses, expenses, or any injury or damage of any kind whatsoever, whether actual, alleged or threatened, attorney fees, court costs, and any other costs of any nature without restriction incurred in relation to, as a consequence of, or arising out of, the performance of this Agreement, and attributable to the fault of the other. Following a determination of the percentage of fault and or liability by agreement between the Parties or a court of competent jurisdiction, the Party responsible for liability to the other will indemnify the other Party to this Agreement for the percentage of liability determined. Item 12. - 27 HB -1 s2- REIMBURSEMENT AGREEMENT NO. U-2017-151087 BETWEEN THE ORANGE COUNTY TRANSPORTATION AUTHORITY AND WEST ORANGE COUNTY WATER BOARD O, OCTA may, at its own expense, inspect any construction by WOCWB hereunder, to assure itself that WOCWB work is being performed in accordance with Project requirements P. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereon, and supersedes all prior negotiations, understandings, or agreements pertaining to the 33- inch waterline relocation work by and between WOCWB and OCTA, Q, The terms of this Agreement shall be binding upon any successors and assigns of the parties; provided that neither party shall assign this Agreement to a third party that is not a governmental agency without the express written consent of the other party, which consent shall not be unreasonably withheld, HB -1 s3)- Item 12. - 28 REIMBURSEMENT AGREEMENT NO. U-2017-151087 BETWEEN THE ORANGE COUNTY TRANSPORTATION AUTHORITY AND WEST ORANGE COUNTY WATER BOARD In executing this Agreement, the parties represent and warrant that each has received all necessary approval authority and that the persons executing this Agreement on behalf of each party is authorized to do so by law. WEST ORANGE COUNTY WATER BOARD BY: TIT : t DATE: ATTEST Genes r0. ( /Vio�►ta� �!' Approved as to Form: BY: N I Z,� WOCWB General Counsel 5 ORANGE COUNTY TRANSPORTATION AUTHORITY Darrell John n Chief ExecExecubv6 Officer DATE: 9 /9-- ( T Approved as to Form: C Jamey M. Donich OCTA General Counsel Item 12. - 29 H13 _ 1 54_ Exhibit B EXHIBIT B Proposed Project Loan Construction Not to Exceed Bid Loan Amount Agreement U-2017-151087 $3,853,000 Project Management/Engineering/Inspection/Materials Testing and Other Service (12 %) $462,000 Project Loan Contingency (10 %) $385,000 Total Loan Amount $4,700,000 Notes: 1.) Exhibit B shall be amended at bid approval by OCTA to include the actual bid value which shall be increased by 12 percent for Services and 10 percent for total Loan Project Contingency. 2.) A request for a loan exceeding $4.7 million is subject to approval of the Orange County Transportation Authority Board of Directors and West Orange County Water Board. ug -155- Item 12. - 30 Exhibit C Agreement U-2017-151087 EXHIBIT C Proposed Quarterly Payment Schedule Payment Number Payment Due Date Payment Number Payment Due Date Payment Number Payment Due Date 1 February 1, 2018 15 August 1, 2021 29 February 1, 2025 2 May 1, 2018 16 1 November 1, 2021 30 May 1, 2025 3 August 1, 2018 17 February 1, 2022 31 August 1, 2025 4 November 1, 2018 18 May 1, 2022 32 November 1, 2025 5 February 1, 2019 19 August 1, 2022 33 February 1, 2026 6 May 1, 2019 20 November 1, 2022 34 May 1, 2026 7 August 1, 2019 21 February 1, 2023 35 August 1, 2026 8 November 1, 2019 22 May 1, 2023 36 November 1, 2026 9 February 1, 2020 23 August 1, 2023 37 February 1, 2027 10 May 1, 2020 24 November 1, 2023 38 May 1, 2027 11 August 1, 2020 25 February 1, 2024 39 August 1, 2027 12 November 1, 2020 26 May 1, 2024 40 November 1, 2027 13 February 1, 2021 27 August 1, 2024 14 May 1, 2021 28 November 1, 2024 Notes: 1.) The proposed quarterly Payment schedule assumes a loan date of November 1, 2017. This quarterly payment schedule shall be adjusted based on the actual date of loan, however payment shall be provided no later than the first day of the month for each quarter for the preceding payment period. 2.) For each quarterly payment, quarterly loan Interest, quarterly loan principal, and any late fees for previous billing shall be included for the anticipated 40 payment (10 year) loan. If the interest rate of earnings is unavailable for the prior billing period from the State of California's Surplus Money Investment Fund (SMIF), then interest shall payable to OCTA based on the most recent rate available. Annually, an adjustment shall be made to make WOCWB current on payment should any variations from the published SMIF occur in accordance with Agreement terms. 3.) Early payment of the loan is acceptable in accordance with agreement terms. At final invoice, WOCWB shall work with OCTA to develop a final accounting for the final payment. Item 12. - 31 xB -1s6- ATTACHMENT #5 ORANGE COUNTY TRANSPORATION AUTHORITY UTILITY AGREEMENT DISTRICT COUNTY ROUTE POST MILE EA PROJECT ID 20.81-22.67 12 Orange 1-405 12- 1200000180 OH 1000 FEDERAL AID NUMBER OWNER'S PLAN NUMBER HPLULN-6071(043) CC 1523 FEDERAL PARTICIPATION On the project ® YES ❑ NO On the Utilities ❑ YES ® NO UTILITY AGREEMENT NO. UK151087 DATE 1 1 l -+/ 1 The Orange County Transportation Authority (OCTA) in cooperation with the California Department of Transportation ("Caltrans") is proposing to improve Interstate 405 between State Route 73 and Interstate 605 (Project). OCTA and Caltrans have entered into Cooperative Agreement No. 12-697 relating to the Project under which Caltrans will provide Project oversight and upon completion of the Project, Caltrans will continue to own and maintain the Interstate 405. West Orange County Water Board Hereinafter referred to as "OWNER", owns and maintains the following (the "Utility Facilities") • 33-inch Waterline in Westminster Blvd crossing I-405 from Willow Lane to Springdale Street within the limits of the OCTA Project which requires relocation to accommodate OCTA's Project. It is hereby mutually agreed between OCTA and OWNER. as follows: I. WORK TO BE PERFORMED In accordance with Notice to Owner No. UK151087 dated 6/21 /2017, OWNER shall relocate OWNER's Utility Facilities. All work shall be performed substantially in accordance with OWNER's Plan No. CC 1523 dated ` _ l ' a , consisting of 4 sheets, a copy of which is on file at OCTA's (A ices'located at 550 S. Main Street, Orange, CA 92868. Deviations from the O)NNER's plan described above initiated by either OCTA or the OWNER, shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised Notices to Owner, approved by OCTA and agreed to/acknowledged by the OWNER, will constitute an approved revision of the OWNER's plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner. 1093 616.1 HB -15 i- Item 12. - 32 UTILITY AGREEMENT Page 2 of 5 UTILITY AGREEMENT NO. UK151087 U. LIABILITY FOR WORK The existing facilities are located within the STATE's right of way under permit and will be relocated at OWNER's expense under the provisions of Section 673 of the Streets and Highways Code. III. PERFORMANCE OF WORK OWNER agrees to cause the herein described work to be performed by a contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding procedure, and to furnish or cause to be furnished all necessary labor, materials, tools, and equipment required therefore, and to prosecute said work diligently to completion. Engineering services for preparation of plans, specifications, and estimates are to be furnished by a consulting engineering firm of GHD on a fee basis previously approved by OCTA. Cost principles for determining the reasonableness and allowability of consultant costs shall be determined in accordance with 48 CFR, Chapter 1, Part 31; 23 CFR, Chapter 1, Part 645; and OMB Circular A-87, as applicable. Use of out-of-state personnel (or personnel requiring lodging and meal "per diem" expenses) will not be allowed without prior written authorization by OCTA's representative. Requests for such authorization must be contained in OWNER's estimate of actual and necessary relocation costs. Accounting Form FA-1301 is to be completed and submitted for all non -State persormel travel per diem. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per diem expenses shall not exceed the per diem expense amounts allowed under the State's California Department of Human Resources (Ca1HR)travel expense guidelines. Work performed directly by OWNER's employees shall comply with Labor Code Section 177L OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above. IV. PAYMENT FOR WORK OWNER recognizes its legal obligation to relocate its facility at its own cost, but, at the present time does not have sufficient funds available to proceed with the relocation of OWNER's facilities provided for herein. It is estimated that the cost of the work provided for by this Agreement and, as hereinafter set forth, is the not to exceed sum of $4,700,000.00. OCTA agrees to advance to OWNER the not to exceed sum of $4,700,000.00, in accordance with Section 706 of the Streets and Highways Code, to apply to the cost of the work to be undertaken as provided hereinabove. Said not to exceed .sum of $4,700,000.00 will be deposited by the 12-02-2015 Item 12. - 33 HQ -158- UTILITY AGREEMENT Page 3 of 5 UTILITY AGREEMENT NO, UK151087 OCTA with OWNER within 30 days after execution of the Agreement by the parties hereto and upon receipt of an OWNER's bill for the advance. It is understood that OWNER shall pay interest upon receipt of said advance. The rate of interest shall be the rate of earnings of the Surplus Money Investment Fund and computation shall be in accordance with Section 1268.350 of the Code of Civil Procedure. Repayment of the advanced funds by OWNER shall be per the terms specified in the attached REIMBURSEMENT AGREEMENT NO. U-2017-151087 dated . V. GENERAL CONDITIONS OWNER shall submit a Notice of Completion to OCTA within 30 days of the completion of the work described herein. It is understood that said highway is a Federal aid highway and accordingly, 23 CFR, Chapter 1, Past 645 is hereby incorporated into this Agreement. In addition, the provisions of 23 CFR 635.410, Buy America, are also incorporated into this Agreement. The Buy America requirements are further specified in Moving Ahead for Progress in the 21 st Century (MAP-21), section 1518; 23 CFR 635.410 requires that all manufacturing processes have occurred in the United States for steel and iron products (including the application of coatings) installed on a project receiving funding from the FHWA. OWNER understands and acknowledges that this project is subject to the requirements of the Buy America law (23 U.S.C., Section 313) and applicable regulations, including 23 CFR 635.410 and FHWA guidance. OWNER hereby certifies that in the performance of this Agreement, for products where Buy America requirements apply, it shall use only such products for which it has received a certification from its supplier, or provider of construction services that procures the product certifying Buy America compliance. This does not include products for which waivers have been granted under 23 CFR 635.410 or other applicable provisions or excluded material cited in the Department's guidelines for the implementation of Buy America requirements for utility relocations issued on December 3, 2013. If, in connection with OWNER'S performance of Work hereunder, OCTA provides to OWNER any materials that are subject to the Buy America Rule, OCTA acknowledges and agrees that OCTA shall be solely responsible for satisfying any and all requirements relative to the Buy America Rule concerning the materials thus provided (including, not limited to, ensuring and certifying that said materials comply with the requirements of the Buy America Rule). OCTA further acknowledges that OWNER, in complying with the Buy America Rule, is expressly relying upon the instructions and guidance (collectively, "Guidance") issued by t2-02-2015 HB -159- Item 12. - 34 UTILITY AGREEMENT Page 4 of 5 UTILITY AGREEMENT NO, IJK151087 Caltrans and its representatives concerning the Buy America Rule requirements for utility relocations within the State of California. Notwithstanding any provision herein to the contrary, OWNER shall not be deemed in breach of this Agreement for any violations of the Buy America Rule if OWNER's actions are in compliance with the Guidance. It is expressly understood by the Parties that Owner is not, in executing this Agreement, abandoning any preexisting right, title or interest it may have in any land or facilities, all such rights, title and interest being expressly reserved. The terms of this Agreement shall be binding and inure to the benefits of the Parties hereto. Signatures on Following Page ta-0a-aoi5 Item 12. - 35 H13-160- UTILITY AGREEMENT Page 5 of 5 SIGNATURE PAGE TO UTILITY AGREEMENT NO, UK151087 UTILITY AGREEMENT NO. UKI51087 . IN WITNESS WHEREOF, the above parties have executed this Agreement on the dates below. Owner: WEST ORANGE COUNTY WATER ORANGE COUNTY BOARD TRANSPORTATION AUTHORITY, a public entity APPROVED APPROVED Aq By. - By: r 4 Title: i" Ji B:eeiil Xxecutive Director, Capital Programs Date: % () ° & (1 Date: ,gip 4 f " il+ ,7 t, APPROVED AS TO FORM: By. fi4f B Title: Japes M. Donich , -General Counsel Date: ,�.ti �'�r Date: 12-02-2015 HB -161- Item 12. - 36 OCTA INTEROFFICE MEMO August 8, 2017 To: Jim Beil, Executive -Director, Capital Programs From: Joe Gallarda'�eal Property Manager Subject: Utility Agreement for Preliminary Engineering 1-405 Improvement Project West Orange County Water Board Utility Agreement No. UK151087 Staff is requesting approval of the attached Utility Agreement between the West Orange County Water Board (Owner) and the Orange County Transportation Authority (OCTA). The Agreement contains the terms and conditions for the Owner to hire a consultant to prepare relocation plans, coordinate it with the Design Build Contractor, bid the relocation, select a contractor, perform the relocation and conduct construction inspection activities to ensure compliance with contract plans for the following utility conflict in connection with the 1-405 Improvement Project. WOCWB1087 Owner is liable for 100% of the cost of the relocation. Owner has applied for a loan from OCTA and obtained approval for the performance of the above -mentioned activities. OCTA has executed a Reimbursement Agreement (Agreement No. U-2017-151087) with Owner that specifies details for the repayment of the loan, which is attached to the Utility Agreement. The loan amount is $4,700,000,00. This amount has been verified by the independent cost estimate prepared by the 1-405 Program Management Consultant, Parsons Transportation Group. These funds are available within the fiscal year 2017-18 budget approved by the OCTA Board of Directors on June 12, 2017. OCTA's budget to fund the loan for this work and associated costs for the Agreement are 100% funded as part of the Measure M-2 Project K-0017-9082-FK101-ODW. JG:dm Attachment Reviewed/Appfoved by: Rose Casey .r Director, Highway Progra�'r s__ ' Dennis Mak ly,'tta�f,f{ Project Manager 79 James M. Donich General Counsel— r Item 12. - 37 HB - > 62- OCTA COMMITTEE TRANSMITTAL June1Z 2017 To: Members of the Board of Directors n From: Laurena Weinert��lerk of the Board Subject: Relocation of West Orange County Water Board Water Line for the Interstate 405 Improvement Project Finance and Administration Committee Meeting of May 24, 2017 Present: Directors Do, Jones, R. Murphy, and Steel Absent: Directors Hennessey, Pulido, and Spitzer Committee Vote This item was passed by the Members present. Committee Recommendation Authorize the Chief Executive Officer to negotiate and execute Reimbursement Agreement No. UK151087 with the West Orange County Water Board, in an amount not to exceed $4.7 million, for the relocation of the 33-inch pipeline that must be moved to accommodate the Interstate 405 Improvement Project. Orange County Transportation Authority 550 South Main Street / P.O. Box 14184 / Orange / California 92863-1584 / (714) 560-OCTA (6282) HB -1t3- Item 12. - 3 8 City of Huntington Beach 2000 Main Street ♦ Huntington Beach, CA 92648 (714) 536-5227 ♦ www.huntingtonbeachea.gov Office of the City Clerk Robin Estanislau, City Clerk November 30, 2017 Dear Mr. Davis: Enclosed is the original "Financial Participation Agreement — City of Huntington Beach Facilities Relocation Costs." After execution, please retain a copy of the agreement for your records and kindly return the original document to the City Clerk's Office. Sincerely, Donna Switzer Deputy City Clerk Enclosure Sister Cities: Anjo, Japan ♦ Waitakere, New Zealand Switzer, Donna From: Ragland, Brian Sent: Friday, February 09, 2018 9:57 AM To: Switzer, Donna Subject: WOCWB Amended Reimbursement Agreement With OCTA Attachments: Amended Reimbursement Agreement Signed 12-14-17.pdf Good morning Donna, I'm assuming that you needed the dates for the Amended Reimbursement Agreement so I have attached our signed copy for your use. If this is not what you were looking for please let me know. Brian Switzer, Donna From: Switzer, Donna Sent: Thursday, January 25, 2018 3:57 PM To: Ragland, Brian Subject: OCTA Agreement Hi Brian, I just wanted to follow-up on our conversation regarding the 405 Freeway Facilities Relocation Financial Participation Agreement. In order to execute the agreement, we need to state the date of the OCTA Agreement (on page 3 of the Financial Participation Agreement) and we also need to scan it into SIRE because it doesn't appear to be in there yet. Thanks! Deputy City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 (714)374-1649 Donna.Switzer@surfcity-hb.org CITY OF HUNTINGTON BEACH 10EI INTERDEPARTMENTAL COMMUNICATION DATE: December 26, 2017 TO: Signatories of attached Financial Participation Agreement FROM: Brian A. Ragland, P.E., Utilities Manager �J j3 SUBJECT:' Signed West Orange County Water Board Financial Participation Agreement The City Council approved the attached Financial Participation Agreement with the West Orange County Water Board at the November 20, 2017 regular City Council Meeting. Unfortunately, the signed original version of this agreement cannot be located. Please have the required signatories re-sign the attached version as authorized by the City Council. Contact Chris Davis at x1641 if you have any questions.